The Exception Is The Rule: How The Government's 'Good Faith' Efforts Are Destroying The Fourth Amendment

from the synergy! dept

While there has been some progress towards a restoration of the nation's Fourth Amendment rights, there have also been several steps back. A lot of this seems to be tied to a judicial reluctance to side with criminals. These Fourth Amendment issues generally boil down to law enforcement v. bad guys, usually delivered without nuance.

Earlier this year, the 11th Circuit Court of Appeals found that tracking suspects using phone location info required a warrant. This wasn't a general ruling, however, and it was limited to several specifics in this case. The court found that cell phone location info carried an expectation of privacy despite also being a "business record" -- something that is normally stripped of privacy expectations thanks to the Third Party Doctrine.

But here's where the decision ultimately falls apart. The Appeals Court arrived at a different conclusion, but refused to overturn the lower court's decision because it felt the lower court had "acted in good faith." Warrant requirements are now in place in the circuit court's jurisdiction, but the plaintiff was ultimately unable to have the illegally-gathered evidence thrown out.

Similarly, the Third Circuit Court of Appeals found last year that warrantless GPS tracking was a violation of the Fourth Amendment. Again, this decision tiptoed around other similar cases and reached a rather narrow conclusion. This was immediately appealed by the government, which asked for an en banc hearing. The en banc hearing returned this decision October 1st:

The Third Circuit Court of Appeals ruled today that evidence derived from warrantless use of a GPS tracking device can be used in court, even though law enforcement's failure to get a warrant before attaching the device to a car may have violated the Fourth Amendment.

The 8-5 decision in this case, U.S. v. Katzin, applies an expansive interpretation of the so-called "good-faith exception" to the Fourth Amendment's exclusionary rule, holding that officers reasonably relied on decades-old cases dealing with primitive "beeper" tracking technology in concluding that no warrant was required for sophisticated GPS tracking.

Once again, the court found that the search was in violation of the Fourth Amendment, but "good faith" nullified the remedy of excluding the illegally-obtained evidence. The court also vacated the earlier ruling that instituted a warrant requirement for GPS tracking.

Under the “exclusionary rule,” when police engage in an illegal search, prosecutors can’t use the results. This penalty incentivizes police to abide by the Constitution and provides relief to victims of government misconduct. Indeed, as the Supreme Court explained a century ago, without the exclusionary rule the Fourth Amendment would be “of no value” and “might as well be stricken from the Constitution.”

But in a series of decisions starting in 1984, the Supreme Court has retreated from this vital protection of our rights. The justices first held that if police were relying in good faith on a judicially issued warrant authorizing a particular search, the resulting evidence couldn’t be suppressed even if the search was later held to be unconstitutional. The court has since expanded this good-faith exception to cover police reliance on other forms of explicit authorization, including statutes later held to be unconstitutional and binding court rulings that are later reversed.

Basically, the Supreme Court's new view is that the exclusionary rule is no longer a remedy, but a deterrent. The rule isn't there to ensure redress for those whose rights have been violated. It's there to steer law enforcement away from actions that would violate citizens' rights. But this doesn't work, and the main reason it doesn't work is the "good faith exception."

The cumulative effect has been to turn the "good faith exception" into a blank check for Fourth Amendment violations. The exception gives all but the most egregious violations a pass, a fact recognized by the dissenting opinion in the Third Circuit hearing.

"[T]his approach … expands the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle. Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum.”

Those with valid Fourth Amendment complaints will find the courts nearly useless when seeking redress. Combined with the immunity routinely granted to law enforcement in civil cases, those whose rights are violated are left to hope for long-delayed settlements post-incarceration, rather than avail themselves of their rights when on trial for criminal charges -- the point where the exclusionary rule would be of most use.

The good faith exception has swallowed the exclusionary rule and these compounding decisions allow law enforcement to predicate their defenses on uncertainty (even though the accused are never extended the courtesy of an "ignorance of the law" defense) and hide behind immunity while courts continue to defer to the judgement of John Q. Officer.

[T]he name “good faith exception” is problematic both from an application perspective as well as political perspective. It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous. Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent?

The courts have painted themselves into a corner, with the ample assistance of government prosecutors more than willing to portray any minimal nod to the Fourth Amendment as something that allows criminals to elude justice. Even the language deployed plays into law enforcement's hands.

The complications arising from technological advances have muddied the waters a bit, at least in terms of where Fourth Amendment protections begin and end. To prosecutors, these protections haven't changed at all. They're still almost nonexistent. Technology presents new challenges to law enforcement and these are greeted almost exclusively with pleas for further exceptions, as though they should also be immunized from keeping pace with the world itself. And, for the most part, they've been obliged by the judicial system.

When the exception swallows the rule, the Fourth Amendment becomes nothing more than a bit of aspirational fluff cranked out by hotheaded revolutionaries nearly 250 years ago. At best, it's a hassle. At worst, it's clearly unsuited to handle the nuances of today's technology. That's the prevailing government viewpoint. Our rights are eroding, and the most corrosive force has been those sworn to uphold the nation's laws and protect its citizens' liberties.

Reader Comments

The courts have painted themselves into a corner, with the ample assistance of government prosecutors more than willing to portray any minimal nod to the Fourth Amendment as something that allows criminals to elude justice.

It seems that Blackstone's formulation "It is better that ten guilty persons escape than that one innocent suffer", has been inverted to who cares if 10 innocents are thrown in jail so long as no guilty person goes free.

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Inadmissable evidence is not about 10 innocents being thrown in jail. It is about 10 innocents having their rights violated along with the guilty person also having its rights violated.

The violated rights are orthogonal to the guilty/innocent question. Civil rights exist for making the call "what rights are we willing to give up for everyone for the sake of catching criminals".

The idea of making evidence inadmissable is to stop incentivizing the breach of civil rights. Those civil rights are particularly useful for people who have a criminal reason to keep things to themselves.

Breaching the contract of the Constitution does not involve throwing innocents into jail. It involves rifling through their drawers without judicial oversight.

That is, privacy is deemed important and serious enough that the decision when to breach it is not to be left to the discretion of law enforcement officers but has to be signed off on by a judge.

That's only helpful for criminals for any searches conducted without previous reasonable suspicion.

And the cost of such searches without reasonable suspicion is high enough for everybody that the Constitution has chosen to barr them.

Not because innocents would be thrown in jail, but because innocents would have their rights violated along with any possibly guilty ones one might dig up in the process.

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Evidence is not always about the putative crime. Police often "find" evidence that is either "not in plain sight," or wasn't there before the police got there. Given the less than sterling lip service that police show the 4th Amendment, I would always be suspicious of what was claimed to be found in a raid.

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This is why everyone needs to become a fully informed Juror so we can unilaterally slap down the bad practices of law enforcement and the judicial system when it gets out of hand.

All that is left is for people to stop entering plea deals and let the system work as intended.

Then after people review the numbers and find a police department where 90% of their arrests and harrasments result in not guilty convictions the prosecutors will back off "for political reasons of course" as their numbers will look bad. Prosecutors want high conviction rates and slam dunk cases because it looks good for their career. Once that dies down... the police will stop phucking with people as much either.

Chances of this all happening? 0% People are stupid can just are not able to understand. The few of us that know better are crowed out by the idiots shaken and stirred by the current day political landscape.

Re: Barring the government from the evidence

That doesn't actually help much, as long as judges continue to hold the idea that refusing to decrypt something is enough to justify a contempt of court charge. Because that particular 'crime' has a potentially infinite jail sentence attached to it.

Refuse to provide the decryption password? Okay, you can sit in a cell until you decide otherwise, with no maximum 'sentence'.

Re: Re: Barring the government from the evidence

Isn't the point of encryption to stop the government from trolling through information?

If a warrant is properly formed, and limited, then why not force the unlocking, like getting a safe opened to look for contraband with a warrant, no trolling under the mattress or in a closet or through phone or financial records if it is not in the warrant?

On one hand, I don't want an out of control government. On the other hand, I don't want out of control criminals, though I do think we need to rethink what constitutes criminality, we have too many useless 'wars on...'.

Quoting Hon. Gerard Mitchell: "Purpose of s. 24(2)The purpose of s. 24(2) is to maintain the rule of law and the values underlying the charter. It is not meant to punish police misconduct or to compensate an accused for violation of his or her rights. The objective of s. 24(2) is systemic. Its focus is long term, prospective and societal. [Emphasis added] The concern is less with the particular case than on the impact over time of admitting evidence obtained by infringing constitutionally protected rights...Disrepute by AdmissionPolice conduct violating charter rights already brings disrepute to the justice system. The concern of s. 24(2) is to avoid adding to that disrepute by admitting the fruit of illegal state conduct into evidence...The “disrepute” being referred to in s. 24(2) is disrepute in the local community. The administration of justice does not have to be brought into disrepute on a national scale before courts may interfere to protect the integrity of the process within which they operate. Trial judges have to be concerned for the reputation of the administration of justice in the community with which they deal on a daily basis. Thus, a court in a particular case must determine what the long-term impact on the repute of the administration of justice in the community where it operates would be if evidence obtained under similar circumstances was to be regularly admitted. [The police and the courts in the 'States are definitely way past that test, seen from outside the country.]

The threshold for exclusion under s. 24(2) is lower than the “community shock” test advanced by Lamer J. in his dissenting opinion in R. v. Rothman. That is because s. 24 involves consideration of a breach of the supreme law of the land and because the French version, which is equally official, only requires that the evidence “could” bring the administration of justice into disrepute."

Re: What's sauce for the goose...

@ paul-for the same reason that kops can kill virtually anyone at anytime with TOTAL impunity because they 'felt threatened', AND they get away with it approximately 99.99% of the time...

HOWEVER, have the stormtroopers flashbang their way into YOUR HOUSE (EVEN IF A WRONG ADDRESS RAID), shoot you dog and whoever else they see, and if you DARE to act in TRUE self-defense and shoot/kill one of the INVADERS, YOU are guilty of murder, mein gut freund...

THAT is our (in)justice system in a nutshell: TOTAL authority and immunity on the side of the terrorist pigs; and under NO CIRCUMSTANCES are you allowed to defend yourself against them NO MATTER HOW WRONG, CORRUPT, OR PSYCHOPATHIC the kops are...

Re: What's sauce for the goose...

Sorry, but Canada also has a variant of the good faith exception.

In a recent case, the Supreme Court held that the Charter requires a warrant before the police can get subscriber information i.e. IP address, but nonetheless held the evidence admissible because the police had acted according to the law in effect.

Re: Re: What's sauce for the goose...

Quoting from the intro:Section 24(2) of the Canadian Charter of Rights and Freedoms directs courts to exclude unconstitutionally obtained evidence where, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. Thus, it effectively changes the common law which would admit all reliable relevant evidence regardless of how it was obtained. The ‘end justifies the means’ philosophy of the common law has been replaced by one that values truth, but not at the expense of the repute of the administration of justice.

The balancing act the courts must perform is further explained at page 25.

But more importantly, why isn't the 'good faith' argument available to defendants? Especially defendants who, to quote another commenter from months ago, have based their actions on research by y'know, watching 'Bones' and NCIS? Mike? Anyone? Bueller?

I have been seriously considering sending some of my emails encrypted with one time pads. Since I have nothing to hide, I think it best well hidden. Though I suspect that sending an unbreakable "Happy Birthday" coded message might aggravate the recipient.

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Though I suspect that sending an unbreakable "Happy Birthday" coded message might aggravate the recipient.

Just set it up "out of band" (I think that's the phrase). "If you ever see some indecipherable blob from me on your birthday, just consider it's me wishing you happy birthday, while giving us both a gift of freedom by poking the tyrants in the eye with a pointy stick."

Won't the LEOs look ridiculous when either of you are threatened with jail time if you don't enter the passphrase.

Re: Re: unbreakable happy birthday

I think you're overlooking a wonderful feature of the one time pad message: it means whatever you want it to mean. There is no single key that decrypts it into a single message; any key decrypts it into its own unique message. It's not the lock on the door, it's B that causes A + B to equal C. A + E = F, and there's no way to prove that it doesn't. So you send the message you want, but when compelled you give the key that turns it into happy birthday.

Re: Re: unbreakable happy birthday

I think you're overlooking a wonderful feature of the one time pad message: it means whatever you want it to mean. There is no single key that decrypts it into a single message; any key decrypts it into its own unique message. It's not the lock on the door, it's B that causes A + B to equal C. A + E = F, and there's no way to prove that it doesn't. So you send the message you want, but when compelled you give the key that turns it into happy birthday.

Innocent until proven guilty

The current state of rights for civilians vs rights for cops clearly has a giant gap between the two. Since our law clearly no longer supports the old innocent until proven guilty, and the cops have no problem looking for evidence of crimes without any evidence, we should just start looking through every police offices life. I'm sure we will find at least 5% have regular violations that will put them away for years, and that will justify the rights violations of the "innocent" ( innocent in this application meaning not yet convicted of anything, but clearly guilty just like all those civilians in jail for assaulting an officer by hurting their hand when they punch you)

Re: Re: Barring the government from the evidence

@That One Guy"That doesn't actually help much, as long as judges continue to hold the idea that refusing to decrypt something is enough to justify a contempt of courtcharge. Because that particular 'crime' has a potentially infinite jail sentence attached to it."

Sorry, but that's not even an accurate statement of the law about compelled decryption.

The ordinary presumption is that you have a Fifth Amendment right to refuse to divulge the contents of your mind if it may incriminate you either directly or indirectly.

The exception is if the government can already prove that you know the password, then it's no longer self incrimination.

All the American encryption cases in which individuals have been compelled under threat of contempt to decrypt their data have hinged on this narrow rationale.

In the UK, the situation is different in that you can in fact be sentenced to jail for knowingly failing to disclose your password to the police, and the UK has no strong analog to the Fifth Amendment.

But even there, the government must still prove the existence of encrypted data, and that you have the ability to decrypt.

And yet in other countries like Denmark, Sweden, Norway and Germany, you can outright refuse to say anything, and it doesn't matter if the government can prove by absolute certainty that you know the password.

Jailing people for failing to divulge their passwords or for otherwise failing to decrypt data the government wants is very difficult, and that's wholly aside from whether it can be justified as a reasonable infringement on the privilege against self incrimination.

If the government is not able to prove that a datastream is encrypted, it can't force the suspect to decrypt it, and if there are multiple layers but only the existence of the outer one can be proven, it's practically impossible to jail someone on the speculative assumption that there may be more hidden data.

Re: Re: Barring the government from the evidence

"If a warrant is properly formed, and limited, then why not force the unlocking, like getting a safe opened to look for contraband with a warrant, no trollingunder the mattress or in a closet or through phone or financial records if it is not in the warrant?"

Sorry, but you are conflating privacy with self incrimination.

First, let me address you analogy to a physical safe.

A physical safe can be proven to exist, and if it can be unlocked with a physical key the government can try to break it.But if the unlock mechanism depends on something -- a piece of information like a password stored only in your mind, the government can't compel you to incriminate yourself by divulging the password.

Also without knowing the correct password, it may often not even be possible to prove that there xists a safe in the first place.And if the government can''t even prove that someone has a safe of encrypted data, but only the existence of random data, it's in anyway impractical to demand that the individual opens the box.

Encrypted data is not like a physical strongbox, but more like a hidden chamber which appears and disappeears when the correct magic word is uttered.

Could the police jail you for refusing to show them the hidden chambers in your house without first having to prove that you had hidden something?

Of course not, and proving the existence of encrypted data and that the suspect knows how to unlock it often raises the same issue.

Re: Re: Re: Barring the government from the evidence

Sorry, I do not buy your hidden chamber theory. If the cops have my phone/computer they can clearly see the equivalent of 1's and 0's on the system, they just cannot read them. If a warrant is properly executed, then they already know something, and if the warrant is for a phone/computer then they know that the phone/computer exists, they just cannot read it.

It becomes a privacy issue if the 'unlocking' of the device allows them to go fishing in areas not listed in the warrant, and they could always get a locksmith, or a drill to get into the safe.

Re: Re: Re: Re: Barring the government from the evidence

"If the cops have my phone/computer they can clearly see the equivalent of 1's and 0's on the system, they just cannot read them."

Yes, but properly done, encryption would still prevent the detection of the hidden chamber.

In a properly done crypto system, the entire storage space has two qualities: unused storage is written over with random bits and the entire space is encrypted. In such a system, it would impossible to determine if there is a "hidden chamber," because there would be no detectable difference between a still-encrypted section of the space and one that is just filled with noise.

Police control

Notably lacking in evaluations of police performance is any measure of whether arrest leads to conviction. Indeed, police are encouraged not to care too much about what happens after the suspect is taken off the street: That's the prosecutor's job.

Police don't receive direct formal feedback when the evidence they've collected is excluded. Again, that's the prosecutor's concern. And while it's hard to measure the true extent of any informal feedback mechanisms from prosecutors to beat cops, the exclusion of evidence doesn't show up in police performance evaluations.

The "good faith" exception to the exclusionary rule operates to cut off all review of Fourth Amendment law, leaving the government free to inflict as many new outrages as it pleases without ever needing to defend them in court. This is even worse than the individual injustice of admitting illegally-obtained evidence.

Fourth Amendment law derives mainly from appeals of decisions in criminal cases. Litigating Fourth Amendment issues is costly and risky for defendants. They must pay lawyers, investigators, and experts, and such resistance angers prosecutors who retaliate by imposing harsher sentences on defendants who lose Fourth Amendment challenges.

Still, before the "good faith" exception was invented defendants would seek exclusion when there was evidence of police misconduct (even in novel forms such as dragnet "Stingray" wiretaps) then litigate appeals over such issues, because defendants would personally benefit from rulings in their favor. The costs and risks were balanced by the prospect of acquittal.

But a "good faith" exception means that no defendant 'A' can ever benefit from litigating a Fourth Amendment issue in his own case. Even if the trial and appeal courts were to rule that the police did misbehave, such a ruling could only benefit some other defendant 'B' in some other case-- because in A's case the police will be said to have acted in "good faith"-- since no contrary court decision had yet been issued at the time of their misconduct!

The "good faith" exception to the exclusionary rule must be abolished to preserve defendants' incentives to litigate against police misconduct, which is the only way that courts ever get to rule on novel police abuses.

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Erosion vs Destruction

While outright revoking the fourth amendment would likely cause a pretty big uproar, they seem to have realized that like any other 'protection' or 'right', simply undermining it tends to slip under the radar.

As long as it's still (technically) on the books, they can point to it and say 'See, we haven't removed the Fourth Amendment, it's still there, protecting your rights!', while at the same time violating those 'rights' with immunity, since under the shiny facade, the actual amendment has been shot so full of holes by 'exceptions' and 'mitigating circumstances' that it may as well not even be there any more.

[Related] Magistrate issues arrest warrants for 17 years but is new to “probable cause”

Here’s a remarkable case from the Ohio Supreme Court, State v. Hoffman, involving an unconstitutional arrest warrant. The defendant was arrested for a misdemeanor based on a defective arrest warrant, leading to the discovery of evidence of murder. The remarkable part is why the arrest warrant was defective. For at least 17 years, magistrates in Toledo, Ohio were instructed to issue arrest warrants without ever actually making a probable cause determination . . . .

Here's the link to the subject at hand, as Professor Kerr writes:

In the new decision, the Supreme Court of Ohio recognizes the flagrant constitutional violation but concludes that the evidence in this case should not be suppressed because of the good-faith exception.

Remarkable is right. Seventeen years of warrants. No neutral and detached magistrate. Just a rubber-stamp clerk checking the form.

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"Sorry, I do not buy your hidden chamber theory. If the cops have my phone/computer they can clearly see the equivalent of 1's and 0's on the system, theyjust cannot read them. If a warrant is properly executed, then they already know something, and if the warrant is for a phone/computer then they know thatthe phone/computer exists, they just cannot read it."

But they still don't know if the encryption exists, if you have the key, and how many layers exist.

They can read it, but they can't decipher if the picture of your cat contains hidden messages.

If they can prove there is an obvious access control, and that you have the password, they may force you to unlock it, but if there is just random data, i.e. high enctropy in a JPEG image, it's closer to my hidden chamber scenario.

What?

I am totally unclear on how but the officer meant well can be used to justify state agent encroachments on constitutional rights. It's arguable that the officer always means well, including assaulting, shooting, raping or robbing the suspect.

The suppression of evidence due to right-violating misconduct is not a penalty against the officer, it's a penalty against the state for allowing the conduct of the officer.

Strawman?

Are not the courts arguing that evidence, otherwise inadmissible due to a fourth-amendment rights violation, can be used after all if the officer acted in good faith?

That sounds exactly like using the statement "but the officer meant well" to justify a rights violation. Where's this strawman I've allegedly erected?

The state does not feel pain or reprisal. You cannot take revenge against the land or the flag. If anyone, the people ultimately suffer when an aggressor of heinous crimes remains free, and then continues its criminal behavior. But the state gets neither joy for seeing justice done, nor does it grieve for injustice.

To be fair, it has been a natural process by which we've erected the system by which our privacy and security of our persons is enforced (or not). The department of justice enacts many loopholes to slyly circumvent addressing fourth-amendment violations directly, whether through retroactively obtained warrants or parallel reconstruction, in which an anonymous tipper or an ambiguous canine gesture can justify a probable cause transgression.

As a result, Law Enforcement gets away with a lot of search and seizure that should be criminal, and when they don't it's because someone who is a real danger to society is providing enough of a challenge that they can only be convicted by admitting poisoned evidence.

And yeah, then it becomes very tempting for those in the system to cheat justice anyway, because otherwise a terrible criminal walks free. It becomes very tempting to plant evidence or adjudicate creatively in ways that set terrible precedents.

Re: Strawman?

That sounds exactly like using the statement "but the officer meant well" to justify a rights violation. Where's this strawman I've allegedly erected?

You're not listening to the arguments carefully.

No one's justifying the violation.

But justifying the violation is not the issue in a suppression hearing. It's just not the issue. The question presented is whether the fact-finder should consider the unconstitutionally-obtained evidence as probative of the defendant's innocence or guilt.

In the fifth amendment context, the question is very similar. But there, we have the suspicion that the officer beat the confession out of the suspect—so it's an easy answer to suppress the "confession" because we just don't trust it.

There's an awful lot of surface similarity between the fourth and fifth amendments. So, if exclusion is the basic rule for a fifth amendment violation, then shouldn't it also be the basic rule for a fourth amendment violation? Not so fast. In the fourth amendment context, we generally don't think the police fabricated the evidence.

Interaction between officer action and the fourth amendment

No one's justifying the violation.

I think they are. An officer has no need to conduct a search except under the justification that a crime may have occurred.

We have regular SWAT raids now on the scantest of evidence (to the point that false "tips" are common as a device to use SWAT raids as an instrument of harassment). Often minor infractions (e.g. unlicensed haircuts) are used to retroactively justify the SWAT raid when the alleged drugs or drug paraphernalia is not found.

And yes, when there are no consequences to violating constitutional rights, the rights get violated. This good faith notion implies that sometimes the violation of these rights is acceptable. When we regard it as such in cases of the guilty, it becomes applied to the innocent as well. We might as well then argue that we don't have, or should not have a right to privacy at all, and that the forth amendment is void.

If the police transgressed rights in obtaining evidence, how is that any more proper than if the officer planted evidence in the first place to secure a conviction, or secured a confession through force and deceit?

Re: Re: Strawman?

Of course they are. If you're allowed to use evidence that was gathered as the result of a violation, then you've said that the violation doesn't matter except as an academic point.

You are arguing a fine legal distinction, but what matters to actual people is what the actual effect in the real world is. And that actual legal effect is that the violation is considered to be meaningless, therefore justified.

Re: Re: Strawman?

The question presented is whether the fact-finder should consider the unconstitutionally-obtained evidence as probative of the defendant's innocence or guilt.

This is the sort of nuanced, rational argument that winds up killing brilliant symbolic logicians. They can win Fields Medals, but die of exhaustion in the shower unable to escape the unending cycle of "lather, rinse, repeat."

Unenforced rights

So it took until 1961 before we determined that human rights are void unless they have the force of law behind them. And even now, they don't have very much.

Considering the behavior of the Department of Justice and the nation's intelligence agencies, our rights to privacy and protections of illegal search and seizure (or self-incrimination) only extend to what we codify. Ergo, new technologies such as cell phones are open to search and seizure until either law or court ruling regulates state access to them.

Which means that if someone hypothetically invented a mind-reading machine, the police will be allowed to use them by default and without regulation until a law is passed or a court overrules its use.

Fourth and Fifth Amendment

In the fifth amendment context, the question is very similar. But there, we have the suspicion that the officer beat the confession out of the suspect—soit's an easy answer to suppress the "confession" because we just don't trust it.

Actually, the Fifth Amendment also requires the suppression of real physical evidence, if it is the fruit of an involuntary confession.

For example, suppose the police beats a suspect to reveal his weapon and on that there is DNA matching that found at a murder scene.

Even if the suspect has only 'confessed' the location and existence of the physical evidence, the weapon must still be excluded as evidence regardless of its probative value, because it is the fruit of a coerced confession.

Not so fast. In the fourth amendment context, we generally don't think the policefabricated the evidence.

The dead body revealed through a coerced confession is not fabricated evidence, and the possibility that evidence has been fabricated is not the only rationale for the Fifth Amendment.

There is extensive caselaw concerning how, why and when the Fifth Amendment protects people from incriminating themselves by divulging physical evidence.Under the federal immunity statute, the immunity granted must be coextensive with the Fifth Amendment itself, and it must both immunize the person from the testimonial consequences of his verbal confession and derivative physical evidence acquired through that confession.

If the Fifth Amendment only was there to guard against unreliable confessions, the government could compel suspects to reveal physical evidence, grant immunity for the confession but still use the physical evidence in its case in chief.

Re: Fourth and Fifth Amendment

If the Fifth Amendment only was there to guard against unreliable confessions, the government could compel suspects to reveal physical evidence, grant immunity for the confession but still use the physical evidence in its case in chief.

Isn't that exactly what we're now seeing in the compelled-decryptation cases?: The suspect is ordered on pain of contempt to produce her papers.

Re: Fourth and Fifth Amendment

Isn't that exactly what we're now seeing in the compelled-decryptation cases?: The suspect is ordered on pain of contempt to produce her papers.

The government tried that argument but failed in the Eleventh circuit case.

It argued that it would grant immunity to the unnamed suspect for the act of decryption itself but might still use the derivative evidence -- llikely child pornography found as a consequence of the act of decryption.

It was in essence the Manna from heaven theory, which the D.C. Circuit had earlier rejected in United States v. Hubbel, later affirmed on other grounds by the Supreme Court.No other court has so far bought that argument even in the encryption context.

In Boucher, Fricosu and the Feldman cases, the dispositive issue was not how much immunity was due but how much the government already knew.

If the knowledge that you have the password and can decrypt incriminating data is a foregone conclusion, the government need not offer you immunity.

But in the Eleventh Circuit grand jury subpoena case, the immunity question had to be decided directly, because the government was unable to satisfy the foregone conclusion --it couldn't prove the existence of files, or that the suspect was able to decrypt.

The question as to the extend of immunity under 6002 is also a constitutional question, because the Supreme Court has held that 6002 is coextensive with the Fifth Amendment itself.

In the Boucher case, law enforcement had already seen the child pornography, and the testimonial consequences of the act of production was therefore a foregone conclusion.

The only immunity Boucher was offered was for the knowledge of the password, which the government didn't know.

In the Fricosu and Feldman cases, the government eventually succeeded in getting the data decrypted by other means.

I think that if you are already passed the point at which your lawyer has to negotiate how much immunity you may be granted in exchange for revealing information damaging to your reputation, you are already in deep trouble.

Remember that the Fifth Amendment does not mean that the government can't never force you to admit something --- it only means that you can't be compelled to divulge the contents of your mind *if* said evidence can be used against you in a criminal prosecution.

If you are offered immunity, you can be compelled to speak and reveal past criminal acts even under penalty of perjury and may even be compelled to confess acts which can cost you your reputation.

Re: Re: Fourth and Fifth Amendment

If the knowledge that you have the password and can decrypt incriminating data is a foregone conclusion, the government need not offer you immunity.

...

In the Boucher case, law enforcement had already seen the child pornography, and the testimonial consequences of the act of production was therefore a foregone conclusion.

The only immunity Boucher was offered was for the knowledge of the password, which the government didn't know.

Here's a question though: Did they have a case, without being able to force him to hand over the password? If no, even if they 'knew' that the evidence was there, forcing him to hand over the password seems functionally identical to forcing someone to hand over incriminating evidence.

A password on it's own might not be incriminating, but the ability to, and act of, giving it is basically admitting 'The files this unlocks belong to me, or are accessible to me, therefor I can be held responsible for them.'

immunity of a password

I'm not understanding the nuances between immunity to having the password and immunity to persecution of crimes uncovered by decrypting files..

If the police can prove I have criminal materials encrypted without my decryoting them, they don't need the materials decrypted. If the police can't prove it, then compelling me to decrypt the files is a compulsion of self-incrimination.

If my files incriminate me and someone else, then they might offer me immunity in order to prosecute the other guy. But any evidence that comes from my unlocking the files cannot be used to prosecute me for a crime.

If it is otherwise, then I have np cause to cooperate with the police: they're going after me regarless of my rights and will shoot me anyway once I am no longer useful.

Re: immunity of a password

If the police can prove I have criminal materials encrypted without my decryoting them, they don't need the materials decrypted. If the police can't prove it, then compelling me to decrypt the files is a compulsion of self-incrimination.

And this is why I just don't buy the argument that the rules against self-incrimination shouldn't apply to passwords. The password itself may not be incriminating, but if it unlocks incriminating evidence, the forcing someone to hand over the password is forcing them to hand over incriminating evidence, and as such the rules against self-incrimination should absolutely also apply to forcing someone to decrypt something or hand over a password.

Re: Re: Fourth and Fifth Amendment

Here's a question though: Did they have a case, without being able to force him to hand over the password? If no, even if they 'knew' that the evidencewas there, forcing him to hand over the password seems functionally identical to forcing someone to hand over incriminating evidence.

They already knew that there was child pornography on his computer, they just couldn't decrypt it.

Under settled caselaw, you can be compelled to produce particular records, if it's a foregone conclusion you have them.

The act of production itself may also be incriminating, and you can often refuse to produce incriminating evidence, if the government isn't aware of them.

However, this protection did not help Boucher, because he already had let the cat out of the bag by showing his unencrypted laptop to law enforcement.

The only remaining viable Fifth Amendment objection to the decryption was that Boucher would have to show the government his password to his computer, and that might sometimes be incriminating.

After some back and forth, the court ended up compelling Boucher to enter his password himself, thereby avoiding disclosure to the government.

Note that there are two distinct issues -- whether the password itself is testimonial and incriminating, and the act of production of incriminating evidence which may also raise Fifth Amendment concerns.

Disclosing a password or entering a password thereby producing incriminating evidence may often sound functionally equivalent, but if you have already revealed that (1) this computer is mine; (2) I know the password; or (3) There is child pornography on my computer you have essentially made the testimonial implications of the act of decrypting a foregone conclusion and like Boucher or Fricosu, you can probably be compelled to unlock your computer, because the mere act of decryption will not reveal not yet known incriminating facts to the government.

If the government can prove, that person NN owns phone XX and is the sole user, he can be compelled to unlock it, but if the chain of custody can't be proven, or there are more hidden layers of encryption, but the government can't prove their existence, NN can plead the Fifth as to these questions.

The actual application of the Fifth Amendment privilege against self incrimination is really complicated, and most people don't understand the difference between privacy and self incrimination.

Personally I am uncomfortable with the Boucher and Fricosu cases for another reason -- that the word of the law enforcement officer may be sufficient to convince a court to compel you to produce evidence that doesn't exist.or can't be proven to exist.

If you are arrested by the police, any cop can claim he has seen CP on your computer, and it's up in the air whether the mere allegation by the police is enough to satisfy the foregone conclusion.

Re: immunity of a password

The password itself may not be incriminating,but if it unlocks incriminating evidence, the forcing someone to hand over the password is forcing them to hand over incriminating evidence, and as suchthe rules against self-incrimination should absolutely also apply to forcing someone to decrypt something or hand over a password.

yes, and that was the issue in the Eleventh Circuit Grand Jury Subpoena case.

If compelled testimony leads to more evidence, and that further evidence is not already known to the government, this situation is covered by the act of production privilege.

But in practice, the distinction between the password itself and the derivative evidence uncovered as a result of the decryption should not matter, if the government doesn't know that you have the password.

If the government doesn't know or rather can't prove you have the password, it can't force you to enter it and decrypt incriminating evidence and if it doesn't know that you have incriminating evidence, you can't be compelled to produce it.

So the takeaway from all this complexity is that you should never tell the government about your encryption, never admit you own encrypted data, and never admit ownership of any storage media containing encrypted data.

All the defendants in the other cases committed mistakes in their interaction with law enforcement and one defendant who later pled guilty blabbered about her encryption in a taped telephone call.

If you are ever asked by the police or any government official, if you own encrypted data, or are asked to decrypt anything, only answer that you want to talk to your lawyer, and explicitly state that you plead the Fifth.

Don't just stay silent, because the Supreme Court had held that an individual in order to plead the Fifth must expressly invoke it.

Also be aware that lying to the government is a serious crime.

Even if you haven't yet committed another crime, you can be convicted of obstruction of justice if you falsely answer any question put to you by the FBI.

Re: Re: immunity of a password

Don't just stay silent, because the Supreme Court had held that an individual in order to plead the Fifth must expressly invoke it.

So, Miranda is gone now? I can just see kids watching old cop shows. "Mom, what's Miranda?" "Just an old cover your ass move the police thought they had to do to convict bad guys. It was made obsolete years ago." Next step, they'll demand you have to quote the 5th wholly and accurately in order to be deemed to have actually invoked it.

My resolution to never, ever set foot in the US again is looking smarter every day.

The Miranda Court formulated a warning that must be given to suspects before they can be subjected to custodial interrogation. The substance of the warning still must be given to suspects today. A suspect in custody must be advised as follows:

"He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

All concede that the warning given in this case was in full compliance with these requirements. The dispute centers on the response—or nonresponse—from the suspect.

Re: Re: Re: Re: immunity of a password

I'll just have to assume the Supremes are patently insane. They've invented an internal language that sounds a lot like common English, but the words have different definitions which are known only to them. An inalienable right does not need to be explicitly invoked.

dict inalienableIncapable of being alienated, surrendered, or transferred to another; not alienable; as, in inalienable birthright.

2. Whether Defendant has Standing to Challenge the Search of the Blue Camera Bag

. . . Here, Defendant has not asserted nor has Defendant furnished any evidence that he expressed his ownership over the blue camera bag either before or during the search of the vehicle. A defendant who fails to alert the officers to his ownership interest over a container or bag within the vehicle ultimately does not retain an expectation of privacy. Therefore, the Court concludes that Defendant did not maintain an expectation of privacy over the blue camera bag. Accordingly, the officers' search of the blue camera bag did not violate Defendant's Fourth Amendment rights.

Re: Re: Re: immunity of a password

Asserting a property interest sufficient for Fourth Amendment standing puts you in a bind because you thereby admit that you are the owner of the property.

And by admitting ownership of the property, you are conceding facts which may diminish your ability to plead the Fifth.

Let's suppose that the item seized in in U.S. v Valle-Irizarry (D.N.J. 2014)was a computer with an encrypted partition.

if the defendant had told the law enforcement that the computer was his property, and that the data belonged to him, he might have had Fourth Amendment standing to contest the action, but would no longer have the right to plead the Fifth because that voluntarily disclosed fact was then a foregone conclusion.

To summarize, asserting a Fourth Amendment interest requires you to disclose facts which may help the government in arguing that its a foregone conclusion that you are the owner of the computer, and that you know the password.

So what's the solution?

Assert Fourth Amendment standing, admit you are the owner of the computer, but waive the Fifth Amendment, or plead the Fifth and waive the Fourth Amendment standing.

Sacrificing one right to invoke another...

It seems creepy that by invoking one constitutional right, you have to sacrifice access to the other.

And I'm also leery of what is accepted as sufficient proof by the police that a fact is established. Does is take merely the word of one police officer? Even though police in the US are notorious for lying in court under oath to secure convictions?

And what happens if it's your computer and your encrypted data, but therein are elements that do not belong to you, such as data you hold for another person, or for a company? When you claim ownership of a computer, must you surrender access to those as well?

I keep coming back to the strongbox allegory: say I have a strongbox that is impenetrable by the police (they can try, but it's far more likely they'll incinerate the contents before they successfully break it open).

If I understand US law correctly, I should not need to assist the police in any way accessing that strongbox, even if they know all my child porn, drugs, the head of an orphan and the records of my global human trafficking business are all in there.

Indeed, short of a video recording showing me loading the strongbox with my ill-gotten possessions, they can't know what is in that strongbox unless they have a video of me putting that stuff in there, in which case, the strongbox materials are useless to them (unless they want to bust my associates as well). Even if I confess to them, I could be lying (and people confess falsely all the time).

If they can't force me to open a strongbox, why can they force me to decrypt a block of data? It's the same thing, except one is on a computer.

Re: Sacrificing one right to invoke another...

It seems creepy that by invoking one constitutional right, you have to sacrifice access to the other.

Yeah, I think I'd prefer to invoke *both* of those inalienable rights, thank you very much. Which means, you don't need me in the courtroom any longer. You lawyers are welcome to argue it back and forth until heat death of the universe. The clock's ticking by the way, "right to a speedy trial" and all that, you know?

You can't force me to decrypt what you can't prove is mine, and you can't force me to help you prove it's mine because I'm not talking. Nyaa, nyaa! Take your good faith exception and shove it!

Re: Re: Sacrificing one right to invoke another...

Though in this clime, that may lead to the part where they beat you with the five-dollar wrench.

This cynicism is often voiced when plausible deniability or deniability of any kind is offered as a solution.

And if the adversary is the Islamic State or Putin's police, they would no doubt use any means to get the information they think you have.

An article about the western hostages taken by ISIS mentioned that the interrogator often asks for the password to the laptop, and no one has to guess what happens if you refuse.But more interesting is if the adversary has to play by some rules.

Even under RIPA the UK police can't beat you in order to get your password, and a charge for knowingly failing to disclose a password must be proven in a real court of law.

Yeah, I think I'd prefer to invoke *both* of those inalienable rights, thank you very much. Which means, you don't need me in the courtroom any longer.You lawyers are welcome to argue it back and forth until heat death of the universe.

Then you don't say anything to the police when they come knocking.

Your only reply to any interrogatory should be I want to speak to an attorney, and you are safe.

Law enforcement doesn't have to read you your Miranda rights informing you about your right to remain silent, if you aren't not yet in custody, but at any time you have the same right to consult your attorney or plead the Fifth.

So, Miranda is gone now? I can just see kids watching old cop shows. "Mom, what's Miranda?" "Just an old cover your ass move the police thought they hadto do to convict bad guys. It was made obsolete years ago." Next step, they'll demand you have to quote the 5th wholly and accurately in order to be deemedto have actually invoked it.

Not so fast, the Miranda warning is only mandatory for people taken into custody.

If you aren't not yet in custody, you are not read the Miranda rights, but all the rights of which the warning informs you are rights you already have.

If you voluntarily come to the police station and try to cover up your crime, Miranda does not apply.

If the police asks if they can talk with you, and you voluntarily answer their questions, Miranda does not apply.

If the police knocks on your door asking if they may look at your computer, and you don't object, Miranda does not apply.

The only situation wherein Miranda has any meaning is when you are in custody and the police initiates interrogation attempting to illicit incriminating answers.

But pleading the Fifth is possible in any encounter with the government, and the fact that you have expressed a will to invoke the privilege can't be used you at trial.

However, if you only stay silent during a police encounter, this will not count as a valid pleading of the privilege.

In Salinas v. Texas, the defendant did not expressly invoke the privilege but merely stayed silent after voluntarily coming to the police station and being asked some questions.